Facts of the case

Several groups, including attorneys, journalists, and human rights organizations, brought a facial challenge to a provision of the Foreign Intelligence Surveillance Act (FISA). The provision creates new procedures for authorizing government electronic surveillance of non-U.S. persons outside the U.S. for foreign intelligence purposes. The groups argue that the procedures violate the Fourth Amendment, the First Amendment, Article III of the Constitution, and the principle of separation of powers. The new provisions would force these groups to take costly measures to ensure the confidentiality of their international communications. The District Court for the Southern District of New York granted summary judgment for the government, holding that the groups did not have standing to bring their challenge. The groups only had an abstract subjective fear of being monitored and provided no proof that they were subject to the FISA. The U.S. Court of Appeals for the Second Circuit reversed, holding that the groups had standing based on a reasonable fear of injury and costs incurred to avoid that injury.

Question

Do respondents have Article III standing to seek prospective relief under the FISA?

John G. Roberts, Jr.:

Samuel A. Alito, Jr.:

The respondents in this case brought suit to challenge the constitutionality of Section 702 of the Foreign Intelligence Surveillance Act of 1978 which was added by the FISA Amendments Act of 2008 and it's codified at 50 U.S.C. Section 1881 (a).

The question before us in this case is whether the Second Circuit was correct in holding that respondents have Article III standing.

Section 1881 (a) allows the Attorney General and the Director of National Intelligence to acquire foreign intelligence information by jointly authorizing their surveillance of individuals who are not United States persons and they're recently believed to be located outside the country.

Before doing so, they normally must obtain the Foreign Intelligence Surveillance Court's approval and surveillance under Section 1881 (a) is subject to statutory conditions, judicial authorization, congressional supervision, and compliance with the Fourth Amendment.

Respondents are United States persons whose work allegedly requires them to engage in sensitive international communications with individuals, they believe are likely targets of surveillance under Section 1881 (a).

The respondents assert that they can establish injury in fact because there is an objectively reasonable likelihood that their communications will be acquired under Section 1881 (a) at some point in the future.

But this theory of future injury is too speculative to satisfy the well-established standing requirement that threatened injury must be certainly impending.

And in any event, any threatened injury is not fairly traceable to Section 1881 (a).

In the alternative, respondents contend that they are suffering present injury because the risk of Section 1881 (a) authorized surveillance already has forced them to take a costly and burdensome measures to protect the confidentiality of their international communications.

But respondents cannot manufacture standings by choosing to make expenditures based on hypothetical future harm that is not certainly impending.

We, therefore, hold that respondent's lack Article III standing.

We reverse the judgment below and remand the case for further proceedings consistent with this opinion.

Justice Breyer has filed a dissenting opinion in which Justices Ginsburg, Sotomayor, and Kagan have joined.